From Inksters Solicitors

Information Notices: UKIP v Information Commissioner (Part 2)

Last year I blogged on UKIP’s appeal to the First-Tier Tribunal (Information Rights) (“FTT”) against an Information Notice issued by the Commissioner; the FTT dismissed UKIP’s appeal. UKIP sought (and was granted) permission to appeal to the Upper Tribunal. The Upper Tribunal has now issued its decision. The decision has not yet been published by HMCTS; however, the wonderful people at 11KBW have published it [pdf] on their Panopticon blog (you can read Robin Hopkin’s post on their blog here). If you can’t be bothered reading to the end; the spoiler is that UKIP’s appeal was also dismissed by the Upper Tribunal.

By the time that UKIP’s appeal came before the Upper Tribunal, there were four “heads of appeal”: (1) The FTT had erred in law in terms of its approach to the exercise of the Commissioner’s discretion in issuing the notice; (2) the FTT had erred in law in terms of the scope of the notice; (3) the FTT had erred in law in terms of the timeframe for the notice; and (4) the FTT had erred in law in terms of irrationality.

The first head of appeal related to whether or not the FTT was correct, in law, to conclude that the scope of the information notice was clear. Upper Tribunal Judge Wikeley, at paragraph 24, concluded that taking the first five paragraphs of the information notice together, they were sufficient to comply with the requirements in section 43(2)(b) of the Data Protection Act 1998 (“DPA98”). Judge Wikeley did concede that the FTT did not provide as full reasons as he had, but they were clear enough that the FTT was satisfied that the notice complied with the requirement in section 43(2)(b) of the DPA98. The Judge, again said (having said it previously in another case), that the FTT does not need to set out in detail “every twist and turn of its assessment of the evidence and its consequential reasoning.” It is enough that the decision shows that the FTT has applied the correct legal test and has explained its decision in “broad terms”.

The second head of appeal related to the period for which the Commissioner wanted information from UKIP. The notice made reference to the 2015 General Election, but then asked questions about the 2016 referendum of the UK’s membership of the European Union. The judge accepted “that some of the drafting of the information notice is not ideal.” The notice had used both the former and present tense; sometimes together as alternatives. The Upper Tribunal concluded that “on a fair and objective reading of the notice as a whole, the information sought was plainly not confined to the 2015 General Election; rather it related to the ongoing processing of personal data” and also noted that the notice “should not be read as if it were a criminal indictment.” [para 27].

The third head of appeal related to the Commissioner’s exercise of discretion. UKIP argued that the Commissioner should have used the ‘least restrictive’ means of obtaining the information that she wanted; in other words she could have and therefore should have simply written a further letter to UKIP. This submission was based on principles which were developed in the context of the legitimate interests ground of processing personal data in the DPA98; it was “inappropriate” to try and “read across” [para 29]. Further, UKIP argued that it did not have the resources to provide a satisfactory response to the Commissioner’s initial letter: this was given short shrift by the judge.

The final head of appeal was that the Tribunal’s final decision was irrational in legal terms. The FTT had started out by giving a provisional view that the notice lacked clarity in its scope, but ended up concluding that it was, in fact, clear. Again, the judge accepted that the FTT’s reasoning was “sparse”, but nonetheless concluded that it was “sufficient.” [para 34]

Therefore, UKIP’s appeal was dismissed and the information notice, once again, stands. It will need to be complied with, subject to any further appeal, within 30 days of the Upper Tribunal’s decision being sent to the parties.

One final point is worth noting; the Upper Tribunal comments that, like a decision notice issued pursuant to section 50 of the Freedom of Information Act 2000, the Commissioner cannot vary an information notice once it has been issued: the commissioner can, unlike a decision notice, cancel the notice and re-issue a fresh notice. That is a consequence of the statutory framework: the statute gives the Commissioner the power to cancel a notice and makes no mention of varying (however, the statute does make mention of the Commissioner being able to vary other notices). In the circumstances an information notice cannot be varied once it is issued; if there is a problem with it then the notice must be cancelled by the Commissioner and a fresh notice issued. The same, in my view, would hold true for information notice issued under the Data Protection Act 2018. The statute provides that the Commissioner can cancel a notice, but makes no mention of varying the notice (whereas, she can vary, for example, an enforcement notice – the statute expressly provides for that in section 153).

From this decision we can take the following:-

An information notice does not need to give a detailed statement as to why the Commissioner requires the information requested in the notice.

The commissioner’s drafting of information notices gets a pass, but could be better.

The commissioner doesn’t need to utilise less intrusive methods of obtaining information instead of exercising her discretion to issue an information notice.

A controller’s lack of resources is not a reason why the Commissioner should not issue an information notice (indeed, it may even be a reason in favour of exercising discretion to issue an information notice).

The FTT is not bound by a preliminary view it expresses and can change its mind.

The Commissioner cannot vary an information notice should there be a problem with it: only cancel it and issue a fresh notice.